Broadcast Treaty Delegates Disagree Whether Webcasting Should Be Protected

The goal of the meeting is to move discussion on the outstanding treaty issues forward on the basis of the working document, a WIPO spokeswoman said. The idea is to come up with a text that will enable a decision on whether to convene a diplomatic conference next year, she said.

One key question is who the treaty should cover. Wednesday saw a discussion, accessible on a WIPO live feed (http://xrl.us/bot8ga, password interbroadcasting), of whether the protections should extend only to traditional broadcasters or also to webcasters.

South Africa said it doesn’t distinguish between the platforms of exportation by a traditional broadcasting organization, and that traditional broadcasters, as long as they transmit their own broadcast, whether by mobile, smartphone, tablet, TV or computer, should be protected. India, however, said streamed content doesn’t involve a signal, so webcasting and simulcasting shouldn’t fall within the scope of the treaty.

NAB said the treaty should focus on signal protection, not content, but most of the piracy that’s occurring is taking place online. “We are not interested in protecting webcasters,” the NAB representative said. A broadcast organization should be defined by three elements, the representative said: (1) Whether it takes the initiative for packaging, assembling and scheduling the program content. (2) Whether broadcast of the programming has been authorized by its rightsholders. (3) Whether the broadcaster takes legal and editorial responsibility for communication to the public of everything included in the signal. That test will help distinguish broadcasters needing protection from “webcasters,” the representative said. Kenya proposed using technology-neutral language to prevent protections from being locked in by fast-moving technological developments.

Japan’s preference is to protect traditional broadcasting, not transmission over the Internet, its delegate said. The EU, however, said it wants the treaty to cover traditional broadcasting, cablecasting, and simultaneous and unchanged transmission of broadcasting programs. The U.S. agreed with the EU that “it is important to understand who it is that we think should be protected by this agreement,” but that now isn’t the time to decide on specific language.

"This is a frustrating negotiation for all sorts of reasons,” Love said. It’s hard to get treaty supporters to explain why an agreement is needed when content is already safeguarded under several copyright and related rights treaties, he said. KEI doesn’t know if the rationale relates to piracy or to creating a new set of rights for those who broadcast, but don’t create, content, he said. Nor does it understand why copyright doesn’t already provide mechanisms to address piracy when it occurs, he said.

Some broadcasters say they don’t care about creating new economic rights but others clearly do, Love wrote. There are proposals to grant rights to giant corporations that own “channels” of content such as HBO and ESPN, and those new rights would divert revenue from copyright owners to distributors, he said. Since ownership of distribution of video is more concentrated than ownership of video content, there will be “distributional impacts that are not well understood,” he said.

WIPO could try to deal with these empirical and policy issues to help people better evaluate the various proposals, Love said. So far there has been “zero economic analysis,” he said. Once the issues are clarified, there can be negotiation over the appropriate limitations and exceptions to rights, an issue directly related to the nature and scope of the rights, he said. Finally, “how does this whole thing play out as broadcasts move to the Internet?” he asked.

Any WIPO study should look at several questions, Love wrote: (1) Who qualifies as a broadcasting organization? (2) Will the treaty affect consumers in terms of what they pay for broadcast content? (3) Will the agreement change the distribution of revenue between copyright holders and content distributors? (4) Will the treaty change the distribution of revenue among countries? (5) Will a new set of permissions, beyond those required for copyright, be created that people will have to renegotiate before they can reuse material copied from a broadcast? If so, how will that affect access to knowledge?

"The rumors I'm hearing (and I wish I had more solid information) is that the delegates are all over the map again,” said Thompson Coburn partner James Burger, who works for Intel on this issue. If one agrees with the extreme protectionist countries, rights would be added to the copyright regime, he told us. Each broadcast would have two copyright owners -- the program’s creator and the local broadcaster. But that’s a “crazy concept” because there’s nothing to “fix” when you're talking about signal protection, and copyright only attaches when content is fixed in a tangible medium, he said.

The only case Burger has heard for broadcast protection is that live sports can’t be copyrighted in the EU, although there’s some dispute about that, and that some entities outside of the country where the sports event takes place are re-broadcasting it, Burger said. The Federal Communications Act already bars such conduct in the U.S., so the treaty could be a simple theft treaty, like the Brussels Satellite Convention, that prohibits re-broadcast over the air of a live sports event. “There is no justification for adding new rights to existing copyright law to cope with what, if it is a problem, is an edge case,” he said.